In re K.L.N.
| Decision Date | 09 March 2021 |
| Docket Number | DA 20-0315 |
| Citation | 2021 MT 56,482 P.3d 650,403 Mont. 342 |
| Parties | In the MATTER OF: K.L.N., a Youth in Need of Care. |
| Court | Montana Supreme Court |
For Appellant: Kelly M. Driscoll, Driscoll Hathaway Law Group, Missoula, Montana (for Mother)
For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Joshua A. Racki, Cascade County Attorney, Matthew S. Robertson, Deputy County Attorney, Great Falls, Montana
¶1 K.S. (Mother) appeals from the termination of her parental rights to her child K.L.N.1 The Eighth Judicial District Court, Cascade County, terminated Mother's rights to her child pursuant to § 41-3-609(1)(f), MCA, in its Order Granting Permanent Legal Custody, Termination of Parental Rights with Right to Consent to Adoption on May 18, 2020. On appeal Mother raises the following issues:
¶2 We affirm the termination of Mother's parental rights to K.L.N.
¶3 The Department has a long history with Mother. Her parental rights to her first child were terminated in 2013 based on her inability to meet an infant's needs. Mother has cognitive and developmental delays stemming from Fetal Alcohol Spectrum Disorder (FASD). Mother's adoptive father (Grandfather) is Mother's guardian and conservator. In 2016, the Department began receiving reports during Mother's pregnancy with S.P., detailing concerns about Mother's ability to care for an infant and her significant other's anger issues. After S.P.’s birth, the Department began receiving reports Mother was unable to care for the infant, exposed S.P. to domestic violence, failed to provide S.P. with food and water, exposed her to unsanitary conditions, refused to return home and slept on the street with S.P. without proper clothing to protect S.P. from heat and insect bites, failed to change S.P.’s diaper for long periods of time, and left S.P. in the care of known child sex offenders. The Department put a Protection Plan in place with S.P. remaining in Mother's custody and Grandfather and his wife (Grandparents) serving as Safety Resources. The Department also referred Mother to Andrea Savage, LCPC, LMFT, CTF-CBT for Theraplay and Parent Child Interaction Therapy (PCIT). Savage completed her first parenting assessment of Mother in 2017. Despite this intervention, Mother continued to expose S.P. to known sex offenders and the Department removed S.P. from Mother's care on August 31, 2017, placing her with Grandparents. Following Mother's stipulation that S.P. was a YINC, the court adjudicated S.P. as a YINC and granted TLC to the Department on October 27, 2017. Mother stipulated to her treatment plan on December 5, 2017.
¶4 K.L.N. was born in early 2018 and the Department removed her from Mother's care shortly after her birth, citing Mother's inability to care for an infant and the ongoing dependent neglect case with S.P. K.L.N.’s birthfather reported he is affiliated with the Quinault Indian Nation (Tribe) and K.L.N. is an Indian Child under ICWA.2 The Department sent notice of the proceedings to the Tribe and sought confirmation of K.L.N.’s membership status. The Tribe did not respond and did not participate in the proceedings. The adjudication hearing was continued several times. On August 14, 2018, upon Mother's stipulation, the court ultimately adjudicated K.L.N. a YINC, granted TLC to the Department, and ordered Mother to comply with the same treatment plan ordered in S.P.’s case. A Qualified Expert Witness (QEW) did not testify at the hearing and the court did not make the additional findings or apply the heightened evidentiary standards required under ICWA in its order.
¶5 After working with Mother for over a year, Savage completed a second parenting assessment in September 2018 and concluded Mother's cognitive capacities to independently parent her children remained unchanged. Savage did not believe Mother was able to make safe decisions for her children due to her poor judgment and impulse control and "does not present as ever going to be able to raise [S.P. and K.L.N.] on her own." Savage recommended Mother engage in individual counseling to address domestic violence patterns and to assist with cognitive understanding of herself. Mother started individual counseling with Angela Meyers, LCPC, LAC, in January 2019 based on Savage's recommendation. Meyers reported to the Department she was concerned about Mother's protective capacities as a parent.
¶6 Following a hearing on June 4, 2019, the court extended TLC pursuant to Mother's stipulation. The Department petitioned to terminate Mother's parental rights under § 41-3-609(1)(f), MCA, on August 19, 2019. The Department sent notice of the termination proceedings to the Tribe. The court held a status hearing on September 3, 2019, and confirmed the termination hearing would go forward on September 24, 2019. Mother's counsel reported for the first time Mother objected to placement of the children with Grandparents, but he had not sought a contested placement hearing because he had "yet to find a way to effectively argue" Mother's objections under § 41-3-440, MCA. The Guardian Ad Litem (GAL) filed her report on September 19, 2019. The GAL opined it would be in the best interest of the children "to remain with their grandparents and continue their relationship with their mother should [Mother's] parental rights be terminated."
¶7 The initial termination hearing took place on September 24, 2019. Mother asked for a one-month continuance to allow the parties to discuss a possible guardianship, based on the GAL's opinion Mother should still be involved in the children's lives even if her parental rights are terminated. The Department asked to put on testimony from Savage and Meyers. Mother did not object.
¶8 Savage was aware of Mother's disability and had worked with parents with FASD previously and testified about how FASD can impact a person's ability to parent. Savage opined parents with FASD can parent with support around them, but they struggle to sustain the level of attention and care a parent must provide in the long term. Parents with FASD would need consistent monitoring and support, such as in-home services multiple times a week to reinforce parental skills, ensure safety, and teach the parent how to interact appropriately with his or her child. Savage provided supervised visitation and PCIT to Mother for over two years. Savage had completed two parenting evaluations of Mother. She explained she had evaluated Mother using 21 specific tasks to assess Mother's ability to engage, challenge, nurture, and provide structure for a child. Savage testified she had worked with Mother to build parenting skills through PCIT since 2017, but Mother had not been successful. Savage explained the standards of PCIT do not recommend daily sessions and call for one-hour increments so as not to overwhelm the parent. Savage explained the quality of time spent together is more important than the quantity of time for developing the parent-child bond. Savage testified that while Mother had strong nurturing instincts, she was unable to provide basic structure and predictability for her children. Savage explained visits were moved from the Department to Grandparent's home because K.L.N. became dysregulated when alone with Mother and Mother was unable to calm her. Savage opined reuniting the children with Mother would place the children at serious risk of emotional harm.
¶9 Meyers testified she worked with Mother over a prolonged period and Mother never missed an appointment. Meyers agreed Mother was developmentally delayed, likely stemming from FASD. Meyers worked with Mother on issues related to domestic violence and protective capacity, forming and maintaining healthy relationships, and chemical dependency. Meyers testified that based on Mother's self-reporting, Mother had made improvements in her relationships, but Meyers continued to have concerns with Mother's impulsiveness and poor judgment in entering into a new relationship while trying to reunite with her children. Mother had made improvements with attending to her own emotional needs, but Mother had minimal coping skills. Meyers opined it would be overwhelming to return the children to Mother's care. Meyers testified she had experience working with individuals with FASD. She explained individuals with FASD need a lot of repetition to change their behaviors. Meyers agreed it could have been beneficial to Mother to have seen her more often.
¶10 The court held another status hearing on December 3, 2019, at which the Department confirmed it was still moving forward with termination of Mother's parental rights. At the hearing, Mother's counsel asked for the court to order mediation between the parties under § 41-3-422(12), MCA, to discuss a possible guardianship. The court ordered briefing from the parties on the issue. After the hearing, Mother filed a Motion for Court Ordered Alternative Dispute Resolution on December 9, 2019, with an accompanying brief. In the brief, Mother argued the court should order the parties to participate in mediation because the Department would not be able to meet its burden to show it provided Mother with active efforts before terminating her parental rights....
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